SJ Quinney College of Law, University of Utah Utah Law Digital Commons Utah Law Faculty Scholarship Utah Law Scholarship 4-2020 Changing Consultation Elizabeth Kronk Warner Kathy Lynn Kyle Whyte Follow this and additional works at: https://dc.law.utah.edu/scholarship Part of the Environmental Law Commons, Indian and Aboriginal Law Commons, and the Natural Resources Law Commons CHANGING CONSULTATION By Elizabeth Kronk Warner,1 Kathy Lynn,2 and Kyle Whyte3 Abstract As climate change and fossil fuel extractive industries ravage Indian country and burden many Indigenous communities with risks, the negative impacts on tribal sovereignty, health, and cultural resources demand consultation between tribes and the federal government. Yet, this is an area where the law fails to provide adequate guidance to parties who should be engaging or are already engaging in tribal consultations. The law, both domestic and international, may require that consultation occurs, but leaves parties to determine themselves what constitutes effective and efficient consultation. The legacy of the law’s inability to provide effective guidance has generated a litany of cases of litigation and mutual hard feelings, a glaring example being how the legitimacy consultative activities was debated and misunderstood in the Standing Rock Tribe’s resistance against the Dakota Access Pipeline. This article hopes to fill the void by turning to other disciplines – ethics and Indigenous studies, for guidance on how effective consultation may be achieved. To accomplish this, the article begins with an examination of relevant domestic and international law. While true that claims exist under both domestic and possibly international law to require the federal government to engage in government-to-government consultation with tribes, very little guidance is given as to what that consultation should look like and which sovereign, whether the tribe or the federal government, gets to dictate the process of consultation. Further, existing domestic and international law provides little as to the scope of such consultation or when it is triggered. Given the law’s inability to fully answer the question of what effective consultation looks like, the article suggests that ethics and morality literature, especially the literature emerging from Indigenous studies, is helpful in framing normative judgments regarding effective consultation. From a moral perspective, consultation can be linked to the norm that all parties should have a chance to give their free, prior and informed consent to the actions of any other party whose actions may impact them in some way.4 Impacts include harms or opportunities to share in any 1 Elizabeth Kronk Warner is the Jefferson B. & Rita E. Fordham Presidential Dean at the S.J. Quinney College of Law at the University of Utah, as well as a Professor of Law. She is also an enrolled citizen of the Sault Ste. Marie Tribe of Chippewa Indians. We would like to thank Casey Bond, a third year student at the S.J. Quinney College of Law at the University of Utah, for his excellent research assistance with this article. 2 Kathy Lynn is a faculty researcher in the University of Oregon’s Environmental Studies Program and coordinator of the Pacific Northwest Tribal Climate Change Project. 3 Kyle Whyte is Professor and Timnick Chair in the Department of Philosophy and the Department of Community Sustainability at Michigan State University. He is an enrolled member of the Citizen Potawatomi Nation. 4 Office of the United Nations High Commissioner for Human Rights & Asia Pacific Forum of National Human Rights Institutions, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions 20 (2013). 1 Electronic copy available at: https://ssrn.com/abstract=3544240 future benefits. In the literature on ethics, “free,” “prior” and “informed” consent are taken as being defined in certain ways. While there are a range of legal and other purposes for consultation, morally speaking, consultation can be understood as one process or strategy for fulfilling the general moral duty of consent. Further, emerging Indigenous studies literatures pertaining to ethics add additional moral requirements to these definitions. The idea of consent, as a moral norm, suggests a relationship between the U.S., tribes, and other parties that would flow much more like a partnership than a formal consultation, and where tribes would have veto rights (the right to say “no”) to any actions that would impact them. To demonstrate this concept, the article presents two examples: the Dakota Access pipeline controversy, an example of ineffective consultation, and the Northwest Forest Plan, an example of deliberate approaches to monitor the effectiveness of consultation. Based on these examples combined with the ethics literature, the article concludes with specific strategies that parties might employ to ensure successful tribal consultations. Beyond filling the void created by current federal law, the article therefore constitutes a valuable and unique addition to the existing scholarship in its interdisciplinary approach, and guidance to parties engaged in tribal consultations. TABLE OF CONTENTS I. INTRODUCTION II. CROSS-JURISDICTIONAL CHALLENGES DEMAND EFFECTIVE CONSULTATION III. LEGAL CLAIMS TO EFFECTIVE CONSULTATION A. FEDERAL TRUST RELATIONSHIP B. TRIBAL TREATY RIGHTS C. STATUTORY REQUIREMENTS FOR CONSULTATION D. EXECUTIVE ORDER E. OBLIGATIONS UNDER INTERNATIONAL LAW IV. MORAL CLAIMS TO EFFECTIVE CONSULTATION V. BENEFICIAL OUTCOMES RESULTING FROM EFFECTIVE CONSULTATION A. A LACK OF EFFECTIVE CONSULTATION: DAKOTA ACCESS PIPELINE B. CONSULTATION AS A PATHWAY TO STRENGTHENING GOVERNMENT-TO- GOVERNMENT RELATIONS VI. CONCLUSION: STRENGTHENING FEDERAL-TRIBAL RELATIONSHIPS TO ADDRESS CLIMATE CHANGE AND FOSSIL FUEL INDUSTRIES 2 Electronic copy available at: https://ssrn.com/abstract=3544240 I. Introduction Climate change is occurring through the increase in severe weather-related events, the rise in water scarcity, prolonged droughts, and changes in animal migration patterns.5 Communities around the world are already experiencing significant impacts from rising sea levels, permafrost melt, wildfires, drought, and many other climate-induce natural disasters.6 The impacts to public health, economic livelihood, and cultural well-being extend the effects of climate change beyond just physical landscapes. Within the United States, heatwaves and insect outbreaks have led to increased tree diseases causing widespread tree die-off.7 An increase in wildfires and drought coupled with reduced water availability has significantly impacted agricultural output, air and water quality, and the populace’s general health. Local communities and various corporations are demanding greater responsibility to reduce the impacts of climate change.8 Indigenous peoples have disproportionately experienced the effects of climate change. Indigenous peoples have their own relationships with the environment through their traditions, spiritual practices, and economic systems. Yet, many Indigenous peoples face harmful climate change impacts and risks due to the U.S. having established a governance relationship with Indigenous peoples that has reduced the size of their territories, restricted their boundaries and jurisdictions, and constrained their capacities to steward resilient landscapes and invest in biodiversity conservation.9 Alaskan Natives, due to permafrost melt, experience the harshness of climate impacts by geographic changes limiting access to, or completely destroying, traditional hunting grounds.10 In the Pacific Northwest, tribes’ spiritual, cultural, and economic benefits are diminished as salmon and shellfish populations are being drastically reduced.11 Flashfloods and prolonged droughts are causing the erosion of historical sites, the destruction of crops, and the relocation from long held homes.12 In each of these cases, the Indigenous peoples are claiming that the aforementioned governance issues with their relationship to the U.S. are at the heart of what makes them as vulnerable as they are to climate change. While climate change is having a disproportionate impact on indigenous communities, many tribes in the United States are leading efforts nationally to build adaptive capacity and resilience in the face of climate change, and suggesting governance pathways for transformation.13 At the same time, the drivers of 5 NASA Global Climate Change, https://climate.nasa.gov/effects/, (last visited Feb. 7, 2020). 6 Id. 7 Id. 8 Blackrock, https://www.blackrock.com/corporate/investor-relations/blackrock-client-letter (last visited Feb. 7, 2020). 9 Kathryn Norton-Smith et al., Climate Change and Indigenous Peoples: A Synthesis of Current Impacts and Experiences 3 (USDA ed., 2016). 10 Id. 11 Id. 12 Id. 13 Rachael Novak et al., Tribes and Indigenous Peoples, 2 Impacts, Risks, and Adaptation in the United States: Fourth National Climate Assessment (2018); U.S. Global Change Research Program, Washington, DC, USA, pp. 572–603. doi: 10.7930/NCA4.2018.CH15. 3 Electronic copy available at: https://ssrn.com/abstract=3544240 anthropogenic climate change, such as the oil, gas, and coal industries, have negative impacts on and pose risks to Indigenous peoples everywhere.14 Climate change and resource extraction is cross-boundary in nature. Many of the tribally-valued cultural and natural resources most at risk from climate change and fossil fuel industries are on ancestral and ceded territories.